EBSA, school attendance and the law

The Education Act 1996 places a legal duty on all parents to ensure that their child has an education. When this education is provided in a school setting parents must ensure their child attends regularly. If the parent is unable to ensure this they can be held accountable for an offence under S.444 Education Act 1996; failure to secure the regular school attendance of a child. The term regular has recently been defined to mean ‘as prescribed by the school’. For the majority of pupils, this means attending school full time. Any unauthorised absence is therefore irregular attendance.

As with any law, the parameters are firm and the Education Act 1996 goes further as the offence is one of strict liability. This means there are only certain permitted defences the parent can use for their child missing school. One such defence is the child was unfit to attend school due to ill health. The parent must prove this to be the case. Only a Head Teacher can authorise absence from school. They may request supporting medical evidence from the parent which shows the pupil is unfit to attend school.

This request is often made to avoid the matter moving into a legal process. Medical evidence can include appointment cards; prescriptions, reports from medical professionals etc. The weight and value of the evidence is one for the Head Teacher to consider in their decision making of whether an absence is to be authorised or not.

When unauthorised absence occurs, dependent on the length and reason for the absence, the school has the option to refer to the Local Authority via Pupil Entitlement: Investigation for consideration of intervention. Pupil Entitlement discharges the Local Authorities statutory duties associated with school attendance. On receiving the referral Pupil Entitlement Investigation will gather evidence from all involved before making a decision on next steps within the legal framework. All cases are considered on a case by case basis at the point of referral and throughout the process. If there is no evidence to support a statutory defence, a case is presented to the Pupil Entitlement legal panel where a judgement is made about the most suitable form of legal intervention.

Interventions are offered within a legal framework with an investigation to establish if an offence can be proven. This can lead to a variety of actions including the use of Fixed Penalty Notices (FPNs) and/or Court action both in the criminal court (offences under the Education Act) or in the Family Court when seeking an Education Supervision Order.

If the decision is made to go forward with a prosecution, consideration is given as to whether this will be the fast track pathway, a normal or an aggravated offence. The fast track route is generally deemed appropriate when support is in place for the family from other agencies, and provides a further 12 week period in which the parent is expected to demonstrate a significant improvement in their child’s school attendance. Alternatively, an Education Supervision Order may be considered appropriate.

An application is made to the family court for a one year supervision order. A supervising officer is identified and their role is to befriend, advise and support the pupil and parent, in order to significantly improve school attendance. If the parent fails to meet the expectations and directions of the order, a prosecution may follow.

For schools with young people experiencing EBSA and struggling with attendance, it is the Head Teacher’s decision whether to authorise absence or not. If a school decides to refer a student to Pupil Entitlement Investigations the expectation would be that the school will have tried an array of strategies to encourage and support the young person’s attendance such as those as outlined in this document as well as requesting any supporting information from medical professionals.

Download a PDF version of the Emotionally Based School Avoidance Guidance and other leaflets here.